Advance Directives
Two types of legal documents extend personal control over medical care when a person becomes incapacitated: a living will and a durable power of attorney for health care. Both documents are called advance directives because they direct, in advance (when the person is capacitated), decisions about aspects of medical care to be carried out during any period when the person can no longer effectively communicate those decisions. An advance directive becomes effective only after incapacity has been determined.
If no advance directive has been prepared, someone must be appointed to take control of medical care decisions. In such cases, doctors and hospitals usually turn to the next of kin. In the rare event that the issue is referred to a court, control is usually given to a family member. If no appropriate family member can be found, the court appoints a guardian or conservator, who may be a friend or a stranger, to oversee care. An advance directive eliminates almost any need for the courts to get involved and helps ensure that the person's health care decisions will be respected.
Living Will
A living will expresses a person's preferences for medical care (it is called a living will because it is in effect while the person is alive). In some states, the document is called a directive to doctors. State laws vary greatly regarding living wills. For example, in some states, only a terminally ill person can create a legally effective living will.
Many people believe that extreme heroic measures and technology should be used to extend life as long as possible, regardless of the degree of medical intervention required or the quality of life that results. Others feel just as strongly that death is preferable to being perpetually dependent on medical equipment or having no hope of returning to a certain quality of life. A living will allows a person to express either of these preferences (or any intermediate measure that the person finds acceptable).
To be valid, a living will must comply with state law. Some states require that living wills be written in a standardized way. Others are more flexible, permitting any language as long as the document is appropriately signed and witnessed.
To indicate preferences for aggressive medical treatment, the document might state: "I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery, the burdens of the treatment, or the cost of the procedures."
To prevent heroic attempts to extend life, the document might state: "I do not want my life to be prolonged, and I do not want life-sustaining treatment (including artificial feeding and hydration) to be provided or continued if I can no longer recognize friends and loved ones and am not expected to resume an independent lifestyle." However, most living wills stipulate that comfort measures should always be taken.
To express a preference for an intermediate position, the document might state: "I want my life to be prolonged, and I want life-sustaining treatment to be provided unless I am in a coma or in a persistent vegetative state that my doctors reasonably believe to be irreversible. After my doctors have reasonably concluded that I am in an irreversible condition, I do not want life-sustaining treatment (including artificial feeding and hydration) to be provided or continued."
Durable Power of Attorney for Health Care
A power of attorney for health care for decision making is a document in which one person (the principal) names another person (the agent, or the attorney-in-fact) to make decisions about health care and only health care. A power is durable if it remains legally in force, even when the principal becomes incapacitated.
A durable power of attorney for health care differs from a living will. A living will states a person's specific preferences regarding medical treatment; it provides guidance as to what care should be provided under various circumstances. A durable power of attorney for health care designates an agent to make health care decisions. The agent is granted the power to discuss medical alternatives with the doctors and make a decision if an accident or illness incapacitates the person. The durable power of attorney for health care can include a living will provision--a description of health care preferences--but should do so only as guidance for the agent, rather than as a binding selection.
Selecting an agent should be done with great care. For example, a person who strongly wishes to avoid aggressive medical treatment should not designate as agent anyone who believes, based on personal philosophy or religious doctrine, that every possible medical intervention should be used to prolong life. Similarly, a spouse who is under enormous emotional stress may be unable to carry out the person's preferences, especially if these include limiting or terminating care. A better choice for a person who has strong preferences but who does not want the rigidity of a living will might be a trusted business associate or a longtime friend. Discussing the details of possible future medical choices with the person named as agent is important, since the agent should be guided by the person's preferences. In addition, the person should also ensure that the agent is willing to act in this role.
The durable power of attorney for health care should name an alternate or successor in case the first-named person is unable or unwilling to serve as agent. Two or more people may be named to serve together (jointly) or alone (severally). A jointly held power requires that all agents agree and act together. In this arrangement, all named agents must be contacted and must agree on every decision. However, this arrangement can lead to chaos and should probably be avoided unless there are special circumstances that warrant its use. A severally held power is usually preferable, because it allows any named agent to act alone.
A person who is competent can cancel a durable power of attorney at any time. The choice of agent does not have to be permanent. If circumstances change, the person can create a new durable power of attorney naming a new agent.
Special circumstances may have to be addressed in drawing up a durable power of attorney for health care. For instance, family members have priority as visitors in a hospital under most circumstances. Unmarried couples and same-sex partners may need special protection to preserve such privileges. A durable power of attorney for health care is critical if the patient wants special status and decision-making power for a person who is legally unrelated.
Ideally, a person should give copies of his living will and durable power of attorney for health care to every doctor providing care for him and to the hospital upon admission. Copies should also be placed in the person's permanent medical record. A copy of the durable power of attorney for health care should also be given to the person's appointed agent and another copy placed with important papers. The person's lawyer should hold a copy of all documents.
Some advance directive documents are overly complicated or unfamiliar to doctors and hospitals and create confusion. It is especially important if the person has both a living will and a durable power of attorney to stipulate which should be followed if they appear to be in conflict. In general, a durable power of attorney is preferable if the patient has a trusted person to appoint. This appointed person can then act as an advocate, question the medical staff, and help decide what the patient would want or what is in the best interest of the patient.
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